Decision : Upheld
Decision date : 10 Jun 2021
The Ombudsman's final decision:
Summary: We will not investigate Mrs X’s complaint the Council has failed to arrange contact with ‘child A’, who is in care, and has refused to deal with her complaint about the matter. The Council has accepted it was at fault for not dealing with the complaint and has agreed to do so. Mrs X can return to the Ombudsman if she disagrees with the Council’s conclusions on the complaint.
- Mrs X complains the Council has refused to put her complaint about lack of contact with a relative, child A, who is on a care order, through the complaint procedure. The Council says this is because she is in court proceedings but she is not.
- Mrs X complains the Council failed to arrange contact which it agrees she and her children should have with child A. She says she has not had direct contact in more than 14 months. Mrs X says this has caused upset and distress and the family are further distressed because they know child A wants to see them.
- Mrs X complains the Council’s social workers have not communicated with her properly and the Council has failed to explain why contact stopped from December 2019.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we are satisfied with the action a council has agreed to take.
(Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
- I have considered Mrs X’s information and comments and discussed the complaint with her by telephone. I have communicated with the Council and discussed the position with it.
What I found
- Mrs X tells me all contact with child A stopped between December 2019 and June 2020. She says there were several video calls with child A in the remainder of 2020. She says they had ten minutes on 22 April and 20 May 2021. Mrs X says her children are close to child A. She would like contact to happen in a setting suitable for the children. She says the Council should listen to the wishes and feelings of child A. She wants the Council to replace lost contact time.
- Mrs X says when she tried to raise issues around contact she was told the social workers could not discuss contact with her. She complained to the Council.
- On 7 January 2021, the Council wrote to Mrs X to say it would not deal with her complaint for the following reason: 'Unfortunately the local authority is unable to consider concerns/complaints where there are ongoing court proceedings. The reason for this is that the court proceedings must take priority over the concern/complaint investigation. In this particular case the local authority has made a judgement that there is a risk of the complaint being prejudicial to the court proceedings.'
- The complaint in this case should be dealt with under the children’s complaint procedure because it is about contact with a child in care. The Children Act 1989 Representation Procedure Regulations 2006 says, under Regulation 8(1), Representations not to be considered:
'the complainant has stated in writing to the local authority that he is taking, or intends to take, proceedings in any court or tribunal.'
'And the local authority decide that consideration of the representations under these regulations would prejudice the conduct of any proceedings or investigation falling under this paragraph' .
- The Council has written to the Ombudsman and accepted our view that it has misapplied the regulation. Mrs X has not taken legal action and therefore regulation does 8 does not apply. The Council should have dealt with her complaint.
Agreed and recommended action
- I have settled the complaint with the Council on the following basis:
- The Council has agreed to deal with Mrs X’s complaint via the statutory children’s complaint procedure.
- The Council has accepted the Ombudsman’s view of regulation 8 which explains the limited circumstances in which a complaint may not be dealt with. It does not apply to Mrs X who has not taken legal proceedings. The Council says a briefing note will be issued to legal services staff and the children’s complaints team to remind them of the regulations/guidance and its correct application.
- I have asked the council to explain in its complaint reply what has happened with contact. I have asked it to ensure that its social workers communicate properly with family members such as Mrs X. The Council will need to consider whether a remedy is needed if there was an unreasonable failure to arrange contact or due to the delay in the complaint handling.
- Mrs X may return to the Ombudsman if she is not satisfied with the outcome of the complaint or if there is further delay in dealing with the complaint.
- The Ombudsman will not investigate Mrs X’s complaint the Council has failed to arrange contact with child A and refused to deal with her complaint about the matter. The Council has accepted it was at fault for not dealing with the complaint and has agreed to do so. Mrs X can return to the Ombudsman if she disagrees with the Council’s conclusions on the complaint.
Investigator's decision on behalf of the Ombudsman